TARA DEVI Vs. KAMALA GUPTA

JUDGEMENT

(1.) This revision has been preferred by the petitioner-Jagdish Prasad who is the plaintiff in Probate Case No. 119 of 1992 in which he has prayed for the probate of a registered Will executed by Smt. Naulakho Devi widow of Shyam Lal Sah on 22-5-1974. The petitioner had filed an application under S. 151, C.P.C. before the Court of Sub-Judge IVth, Patna in Title Suit No. 480 of 1984 praying that the said suit be stayed till the disposal of Probate Case No. 119 of 1992. The petitioner is defendant No. 1 in title suit No. 480 of 1984. The Probate case has been filed by him as the executor of the Will and the father of one of the legatees. The learned subordinate Judge by his impugned order dated 16-12-1992 refused to stay Title Suit No. 480 of 1984 which is a suit for partition, but with a direction that the petitioner may renew his prayer after the preliminary decree, at the time of carving out separate takhtas, if by that time the probate case is not decided.

(2.) A few relevant facts may be noticed. It is not disputed that Ram Gulam Sah was the common ancestor of the parties. Ram Gulam Sah died leaving behind two sons, namely, Narain Sah and Shyamlal Sah. Narain Sah died leaving behind three sons, namely, Ram Govind Sah, Sheo Govind Sah and Jai Govind Sah. On the other hand, Shyam Lal Sah died leaving behind a widow Naulakho who died in the year 1978 but left behind a registered Will dated 22-5-1974 bequeathing her half share in favour of two of the defendants only.Ram Govind Sah died leaving behind his son Jagdish Prasad the petitioner, herein Chandradeep, Rajendra and Surendra.

(3.) Smt. Kamala Gupta widow of Chandradeep, and her son Rajesh Kumar (opposite parties Nos. 1 and 2 in this petition filed a Title Suit No. 480 of 1984 in the Court of Sub-Judge IV, Patna claiming 1/8th share in the properties left behind by late Ram Gulam Sah. Her case was that since Narain Sah and Shyamlal Sah died in state of jointness, the plaintiffs were entitled to 1/8th share in the properties left behind by Ram Gulam Sah. This suit was filed in the year 1984 in which the petitioner and other opposite parties have been arrayed as defendants.